Kingsley Nwezeh in Abuja and Wale Igbintade in Lagos
The Economic and Financial Crimes Commission (EFCC) yesterday urged Justice Nicholas Oweibo of the Federal High Court sitting in Ikoyi, Lagos, to dismiss the application by Kogi State Governor, Yahaya Bello, seeking to vacate the forfeiture order in respect of 14 properties and the sum of N400 million.
Bello had earlier yesterday asked the court in Lagos to vacate the interim order seizing 14 of his properties in Lagos and Abuja, stressing that there was a subsisting order of court restraining the EFCC from having anything to do with Kogi State government.
The governor in an application filed by his lawyer, Abdulwahab Mohammed, argued that the EFCC did not disclose material facts before the order was granted.
Justice Oweibo had on February 22, made an interim forfeiture order following an ex parte motion seizing 14 properties and firms in Lagos, Abuja, and the United Arab Emirates linked to the Kogi State governor.
When the matter came up yesterday, lawyer to Kogi state governor, told the court that he had an application dated March 9, 2023, seeking to vacate the order of the court made on February 22, adding that the EFCC did not disclose material facts before the court, when the order of interim forfeiture of his properties was granted.
“We have an application subject to your lordship’s convenience. We are ready to move the application. It was filed on March 9, 2023. The application is seeking your indulgence to vacate the order of the court made on the 22nd of February, 2023,” he said.
He argued that most of the properties sought to be forfeited were acquired by Bello before he became the governor of the state and that the commission lacked the power to proceed against the governor as he enjoys immunity under the constitution.
“By virtue of the position of the applicant (Kogi State Governor), you cannot proceed against him under any law, according to Section 308 of the Nigerian Constitution.
“If you want to prosecute or forfeit his properties, you have to wait till he no longer enjoys those benefits of a governor,” he argued.
He, therefore, urged the court to grant his client’s prayers and vacate the order
Moving the application, Mohammed, told the court that about third quarter of 2021, EFCC approached the court to freeze Kogi State Salary Bailout Account in Sterling Bank containing about N20 billion.
He stated that when Kogi State government approached Sterling Bank, the bank denied that such account existed.
He further submitted that the State government challenged the freezing order made by Justice Tijjani Ringim, but EFCC hurriedly withdrew the matter, and it was struck out by the court.
He submitted that Kogi State Government subsequently approached the State high court, presided over by the present Chief Judge, Justice Josiah Majebi, who granted an order restraining the EFCC from having anything to do with Kogi State until the substantive matter was determined.
He argued that the order of the Kogi State High Court restraining EFCC from taking any step against Kogi State Government was still subsisting, adding that by virtue of Section 308 of the 1999 Constitution a state governor enjoys immunity.
He stated that the EFCC in flagrant disregard of the said Order of the Kogi State High Court and her pending appeal at the Court of Appeal Abuja Judicial Division, had arrested one Ali Bello, the Nephew of the Applicant herein, who is an associate of the Kogi State Government, on November 29, 2022.
However, in a swift reaction, the EFCC urged Justice Oweibo to dismiss the application by Bello, seeking to vacate the forfeiture order in respect of 14 properties and the sum of N400 million.
The properties including, “Hotel Apartment Community, Burj Khalifa lying, being and situate at, Plot 160 Municipality NO 345-7562, Sky View Building No 1, Property No 401, Floor 4, Dubai U.A.E,” were reasonably suspected to have been derived from unlawful activity.
At the resumed sitting yesterday, the EFCC counsel, Rotimi Oyedepo, informed the court that the preservation order had been published in the Punch Newspaper, in line with the court’s directive to advertise the same in one of the national dailies.
Oyedepo said: “We were directed to make a publication of the said order and we have complied with the order of the court.
“There is an affidavit to the order dated 22nd February, 2023, which was complied with on the 24th February, 2023.
“Sequel to that, we have received a notice of intention to oppose the making of the preservation order and we have equally responded.”
In opposing the application, EFCC counsel Oyedepo relied on depositions in the 12-paragraph counter-affidavit and a written address dated 28 March, 2023, stating that the applicant failed to reply to the counter-affidavit made by the prosecution.
“In Usman against Garke, it was reported in 2003, LPLR 3431, Supreme Court, and our submission is that failure to reply to the counter-affidavit has a single legal consequence that the respondents are agreeing to the application. We urge your lordship to hold that the failure to respond is deemed admitted.
“We have cited authorities to this effect, one of which is Patience Jonathan and the FGN, in paragraph 1.08 of our submission. The Proceeds of Crime (Recovery and Management) Act, 2022 prescribes the mode of challenging the preservation order of the court and the steps to be taken by the party challenging the making of the preservation order”, he argued.
Oyedepo submitted that one of the requirements that the application must contain was that the applicant must show his interest in the property concerned.
“Apart from Paragraph 4H and I of the affidavit in support of the notice of intention, there is nothing before this honourable court showing, by way of credible evidence, how the properties were acquired.
“In our counter-affidavit, we have established how the properties were acquired and there is nothing challenging how the properties were acquired.
“What was deposed is that, most of the properties were obtained before he became Governor of Kogi State and the properties were not acquired through illegal means.
“Without establishing the interest of the applicant, the application is bound to fail.”
On the immunity clause as contained in Section 308 of the 1999 constitution, Oyedepo said: “the Provision of S308 will not and cannot be construed to a ridiculous extent of preventing the state from investigating the beneficiary of the section.
“As far back as 2002, in the case of Fawehinmi and IGP, the court mentioned that a person protected under S308 can be investigated; and the fact that someone is under immunity does not prevent the state from investigating.
“Where a state governor is reasonably suspected to have committed a financial crime, the state can investigate for evidence that will be used in prosecution when he no longer enjoys the immunity.”
Oyedepo also argued that the steps the prosecution was taking “is a step for preservation and it cannot be stopped.”
He further told the court that, out of the entire assets that the EFCC seeks to preserve, only one asset was declared in the applicant’s Declaration of Assets Form and that nothing had been said in the affidavit to challenge “the reasonability of our suspicion.”
He, therefore, urged the court to dismiss the prayers of the applicant and order him to tell the court how the properties were acquired.
A statement issued by EFCC said Justice Oweibo adjourned the matter till April 20, 2023 for ruling.